FSF Statement on SCO v. IBM

by Eben Moglen

June 25, 2003

The lawsuit brought by the SCO Group against IBM has generated many
requests for comment by FSF. The Foundation has refrained from making
official comments on the litigation because only the plaintiff's
allegations have been reported; comment on unverified allegations
would ordinarily be premature. More disturbing than the lawsuit
itself, however, have been public statements by representatives of
SCO, which have irresponsibly suggested doubts about the legitimacy of
free software overall. These statements require response.

SCO's lawsuit asserts that IBM has breached contractual obligations
between the two companies, and also that IBM has incorporated trade
secret information concerning the design of the Unix operating system
into what SCO calls generally “Linux.” This latter claim
has recently been expanded in extra-judicial statements by SCO
employees and officers to include suggestions that “Linux”
includes material copied from Unix in violation of SCO's copyrights.
An allegation to this effect was contained in letters apparently sent
by SCO to 1500 of the world's largest companies warning against use of
free software on grounds of possible infringement liability.

It is crucial to clarify certain confusions that SCO's spokesmen have
shown no disposition to dispel. In the first place, SCO has used
“Linux” to mean “all free software,” or
“all free software constituting a Unix-like operating
system.” This confusion, which the Free Software Foundation
warned against in the past, is here shown to have the misleading
consequences the Foundation has often predicted. “Linux”
is the name of the kernel most often used in free software systems.
But the operating system as a whole contains many other components,
some of them products of the Foundation's GNU Project, others written
elsewhere and published under free software licenses; the totality is
GNU, the free operating system on which we have been working since
1984. Approximately half GNU's components are copyrighted works of
the Free Software Foundation, including the C-compiler GCC, the GDB
debugger, the C library Glibc, the bash shell, among other essential
parts. The combination of GNU and the Linux kernel produces the
GNU/Linux system, which is widely used on a variety of hardware and
which taken as a whole duplicates the functions once only
performed by the Unix operating system.

SCO's confusing use of names makes the basis of its claims unclear:
has SCO alleged that trade secrets of Unix's originator,
AT&T—of which SCO is by intermediate transactions the
successor in interest—have been incorporated by IBM in the
kernel, Linux, or in parts of GNU? If the former, there is no
justification for the broad statements urging the Fortune 1500 to be
cautious about using free software, or GNU programs generally. If, on
the other hand, SCO claims that GNU contains any Unix trade secret or
copyrighted material, the claim is almost surely false. Contributors
to the GNU Project promise to follow the Free Software Foundation's
rules for the project, which specify—among other
things—that contributors must not enter into non-disclosure
agreements for technical information relevant to their work on GNU
programs, and that they must not consult or make any use of source
code from non-free programs, including specifically Unix. The
Foundation has no basis to believe that GNU contains any material
about which SCO or anyone else could assert valid trade secret or
copyright claims. Contributors could have made misrepresentations of
fact in their copyright assignment statements, but failing willful
misrepresentation by a contributor, which has never happened so far as
the Foundation is aware, there is no significant likelihood that our
supervision of the freedom of our free software has failed. The
Foundation notes that despite the alarmist statements SCO's employees
have made, the Foundation has not been sued, nor has SCO, despite our
requests, identified any work whose copyright the Foundation
holds—including all of IBM's modifications to the kernel for use with
IBM's S/390 mainframe computers, assigned to the Foundation by
IBM—that SCO asserts infringes its rights in any way.

Moreover, there are straightforward legal reasons why SCO's assertions
concerning claims against the kernel or other free software are likely
to fail. As to its trade secret claims, which are the only claims
actually made in the lawsuit against IBM, there remains the simple
fact that SCO has for years distributed copies of the kernel, Linux,
as part of GNU/Linux free software systems. Those systems were
distributed by SCO in full compliance with GPL, and therefore included
complete source code. So SCO itself has continuously published, as
part of its regular business, the material which it claims includes
its trade secrets. There is simply no legal basis on which SCO can
claim trade secret liability in others for material it widely and
commercially published itself under a license that specifically
permitted unrestricted copying and distribution.

The same fact stands as an irrevocable barrier to SCO's claim that
“Linux” violates SCO's copyright on Unix source code.
Copyright, as the United States Supreme Court has repeatedly
emphasized, covers expressions, not ideas.
Copyright on source code covers not how a program works, but only the
specific language in which the functionality is expressed. A program
written from scratch to express the function of an existing program in
a new way does not infringe the original program's copyright. GNU and
Linux duplicate some aspects of Unix functionality, but are
independent bodies, not copies of existing expressions. But even if
SCO could show that some portions of its Unix source code were copied
into the kernel, the claim of copyright infringement would fail,
because SCO has itself distributed the kernel under GPL. By doing so,
SCO licensed everyone everywhere to copy, modify, and redistribute
that code. SCO cannot now turn around and argue that it sold people
code under GPL, guaranteeing their right to copy, modify and
redistribute anything included, but that it somehow did not license
the copying and redistribution of any copyrighted material of their
own which that code contained.

In the face of these facts, SCO's public statements are at best
misleading and irresponsible. SCO has profited handily from the work
of free software contributors throughout the world. Its current
public statement constitute a gross abuse of the principles of the
free software community, by a participant who has employed all our
work for its own economic benefit. The Free Software Foundation calls
upon SCO to retract its ill-advised and irresponsible statements, and
to proceed immediately to separate its commercial disagreements with
IBM from its obligations and responsibilities to the free software
community.

Eben Moglen is General Counsel to FSF, and serves on its board
of directors.